Police v Tongatu'a [2022] TOSC 85; AM 4 of 2022 (16 September 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

AM 4 of 2022

POLICE
-v-
FIEFIA HE LOTU TONGATU’A

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Ms H. Aleamotu’a for the Prosecution
The Defendant in person (by AVL from Vava'u)
Hearing: 16 September 2022
Judgment (ex tempore): 16 September 2022

Introduction

1. This is a Crown appeal against a sentence imposed by Senior Magistrate Tuita in Vava’u on 19 May 2022, pursuant to ss 74 and 75 of the Magistrates Court Act.

Background

2. On 19 May 2022, when the Respondent was called before the Magistrate, Mr Tatafu of Counsel appeared. As soon as Mr Tatafu announced his appearance, the Magistrate called for the Respondent to be arraigned in a single count of sodomy in contravention of s. 136 of the Criminal Offences Act. The Respondent pleaded guilty to the charge.
3. The Magistrate then noted that it was a serious crime given its nature and the victim’s age and that it was under the Supreme Court jurisdiction. Notwithstanding, Mr Tatafu and the Respondent asked the Magistrate to deal with the matter in his court. The Magistrate acceded to their request.
4. The Prosecutor then outlined the facts of the case as follows. On 20 December 2021, the victim who was a four year old boy was represented by his father who was a soldier. On the day of the offence, the victim’s father took to the victim to Longomapu to his grandparents place to stay while the father returned to Neiafu for work. The victim’s grandparents explained that as soon as the victim arrived, he wandered off. The victim stated that the Respondent offered him some chewing gum and then proceeded to take off his pants. The Prosecutor said that the Respondent then committed “this heinous crime” the subject of the case. The victim returned crying and his grandparent asked him what happened. The victim explained what the Respondent had done to him and that his anus hurt. After the victim’s father returned, the victim was taken to hospital. He was examined and found to have suffered an anal fissure. According to the Police Prosecutor, the Respondent voluntarily confessed to the offending. The Respondent said that he was “just too horny” on the day so he gave the child chewing gum to keep him quiet and not speak about what he was about to do. The Respondent had no previous convictions. The Prosecutor concluded his submissions by saying:

“Whatever your Honour decides the prosecution is satisfied”.

5. Mr Tatafu submitted that the Respondent was 19 years of age, that he was studying at a technical school and that he pleaded guilty with a “remorseful heart” for what he had done. He added that the Respondent and his family had gone to the victim’s family four times to apologise but that the victim’s father had assaulted the Respondent and “he nearly died”. Mr Tatafu then submitted:

“I am pleading for community work upon the Accused just looking out for his own good, especially with the studies he is currently undertaking event though the seriousness of the offence he has committed”.

The Magistrate’s decision

6. The Magistrate referred to the circumstances of the case as “way too serious based on the victim’s age”. He noted that the maximum punishment under his jurisdiction was three years imprisonment but that the maximum for the offence within the Supreme Court jurisdiction was 10 years imprisonment. He noted the Respondent’s guilty plea and lack of previous convictions. The Magistrate then sentenced the Respondent to six months imprisonment with the final two months suspended because of his guilty plea and good previous conviction.
7. At 3:15pm that same day, the Magistrate called for the Prosecutor to bring the Accused and his Counsel back to court. Mr Tatafu could not be contacted and so only the Prosecutor and the Respondent back before the Magistrate.
8. The Magistrate is then recorded as have said the following:

“After the sentencing earlier today, I really felt the seriousness of this offence that the Accused had committed in comparison to the victim’s age. I note that what I had sentenced the Accused to was lesser [sic]. Therefore, I order that the first judgment I had made for him to serve four months imprisonment be cancelled as follows [:] 12 months imprisonment, one month is to be suspended because of his previous record, another month is to be suspended for his early guilty plea when the matter was first called. Therefore, you will serve 10 months imprisonment commencing today”.

The appeal

9. On 29 June 2022, the Appellant filed a Notice of Appeal. The grounds of appeal are:
   • (a) that the sentence imposed is manifestly inadequate;
   • (b) the Magistrate erred by failing to take into consideration the seriousness of the offending; and
   • (c) the sentence imposed by the Magistrate is inconsistent with decisions in cases of similar offending.

Submissions

10. Mrs Aleamotu’a, who appears for the Appellant, filed helpful submissions and has elaborated upon each of the grounds set out in the Notice of Appeal. It is also observed by the Appellant that the Magistrate did not provide any reasons for either of the sentences he imposed nor did he record what facts he took into consideration in arriving at those sentences. In that regard, the Appellant refers to the decision of Cato J in the Police v Pita Kolo (AM 19/2016).
11. In relation to the second ground of appeal, it was submitted that the seriousness of the offending included that the complainant was only four years old, the offence was premeditated, and the injury sustained by the complainant and trauma he experienced may affect him indefinitely.
12. The Appellant referred to the position of the courts in relation to sexual assaults especially in relation to children as discussed in the R v Pesimoni Fainga’anuku (CR 124/2021). In that case, reference was made to the following statement from R v Pousima [2021] TOSC 131:

“[27] The paramount sentencing consideration for crimes of serious sexual abuse such as the instant case, are the protection of the vulnerable, deterrence, denunciation or condemnation of such behavior and punishment of those who commit such crimes. ... To achieve the aims of denunciation, protection and deterrence in respect of sexual offending involving [in that case] a young adolescent complainant, the Court would almost always be compelled to impose significant prison terms within the maximum penalties prescribed by Parliament.”

13. In support of the third ground of appeal, the Crown refers to the following three comparable sentences:
    1. Iketau [2016] TOSC 24 – the defendant, who was 17 at the time, pleaded guilty to sodomy and serious indecent assault. The defendant there entered the 12 year old complainant’s house and clasped her mouth to keep her from screaming out for help. The defendant strangled her while removing her pants and inserted his penis in her anus. He also forced her to kiss and suck his neck. On the sodomy charge, a starting point of four years imprisonment was set.
    2. Valele [2019] TOSC 6 – the first defendant pleaded guilty to one count of housebreaking, theft and rape. The second defendant also pleaded guilty to one count of serious housebreaking, abetment to rape and sodomy. They broke into the complainant’s house and threatened to kill her while taking turns raping her. In relation to the sodomy count, a starting point of four years imprisonment was also set.
    100. Pesimoni Fainga’anuku (CR 124/2021) – the 18-year-old intoxicated defendant was making his way home when he met the 14-year-old male complainant walking with his 19-year-old sister. The defendant grabbed the complainant’s hand and told him to go with him. The complainant refused and his sister took his hand and told the defendant to leave. The defendant then fondled the sister’s buttocks. Later that evening, the defendant entered the the complainant’s residence and sodomised him. Again, a starting point for the sodomy charge was set of four years imprisonment.
14. Mrs Aleamotu’a added that, in this case, a starting point of four years should be increased to reflect the aggravated features of the offending.
15. When he was called during the hearing of the appeal, the Respondent indicated that he did not wish to make any submissions.

Consideration on the appeal

16. For the reasons which follow, the appeal must be allowed.
17. Firstly, this matter should never had been dealt with by the Magistrate. In doing so, the Magistrate exceeded his jurisdiction.
18. Section 11 of the Magistrates Court Act defines the jurisdiction of that court. Relevantly, subsection (2) provides that the Magistrates Court has jurisdiction to hear and determine criminal cases in which the maximum punishment provided by law does not exceed three years imprisonment or a fine of $10,000. Section 136 of the Criminal Offences Act prescribes a maximum penalty for the crime of sodomy of ten years imprisonment.
19. Subsection 11(3) of the Magistrates Court Act extends the court’s jurisdiction to hear and determine criminal cases which, in accordance with s. 35, the court has determined to hear summarily or which, in accordance with s. 36, the Supreme Court has remitted to it for trial.
20. Section 35 provides, relevantly, that if at any time during the preliminary enquiry into the offence, it appears to the Magistrate on his own initiative or having regard to any representation made in the presence of the Accused by the Prosecutor or made by the Accused and having regard to the nature and circumstances of the case, that the punishment that the Magistrate has power to inflict under the Act would be adequate, the Magistrate may with the consent of the Prosecutor and the Accused proceed to deal with the case summarily.
21. In this case, the Magistrate’s decision to hear and determine this matter was inconsistent with the proper interpretation of ss 11 and 35 of the Magistrates Court Act. Firstly, as noted, the maximum penalty for sodomy exceeds the Magistrate’s ordinary jurisdiction of three years imprisonment. Secondly, what occurred below was not during any preliminary enquiry into the offence. Thirdly, Mr Tatafu’s request that the Magistrate deal with the matter could not be regarded as a representation on which the Magistrate ought to have acted. Fourthly, having regard to the nature and circumstances of the case, it ought to have been apparent to the Magistrate that his jurisdictional limit would not or would be unlikely to permit satisfactory punishment. Fifthly, there is no record in the Magistrate’s decision of the Police Prosecutor having consented to the matter being dealt with by the Magistrate’s court. Although it may be implied that the Prosecutor consented by reason of him continuing to make submissions, he should not have done so and, in fact, should have expressly objected.
22. The second substantive reason for allowing the appeal is that the Magistrate failed to provide adequate reasons for the sentences. In the decision of Pita Kolo referred to by the Appellant, Cato J stated:

“This court has emphasized on several occasions in appeals from Magistrate’s judgments that reasons must be given for the decision made in that court. All too frequently, this court has been asked to intervene in cases where there is little or no reasoning to support a sentence.”

23. Further, in Pohiva v Nuku’alofa Magistrates Court [2015] TOSC at 22, Paulsen LCJ explained:^[1]

“[7] ... A Judge’s duty to give reasons is a requirement of due process and therefore of justice. The parties are entitled to know why the Judge arrived at the result that he did. In the case of the losing party, the reasons of the Judge allow him to assess the merits of an appeal. It is also important to a court hearing the appeal that reasons are given. It is from those reasons that it will usually make its assessment of whether the Judge fell into error. Finally, the requirement to give reasons concentrates the mind of the Judge and the decision is much more likely to be soundly based than if no reasons are given”

24. In the present case, the Magistrate failed to explain or expose any logic in his decision to impose the sentences that he did.
25. The third and most important reason for allowing the appeal is that the sentence passed was manifestly inadequate.
26. It follows from the Magistrate’s failure to provide adequate reasons that he is presumed not to have taken into account any comparable sentences by which an appropriate range of starting points could have been determined. Had the Magistrate done so, as illustrated by the comparable sentences referred to by the Crown on this appeal, he would have realised that the appropriate sentencing range was either at, or in excess, of his jurisdictional limit.
27. In that regard, I agree with the Appellant’s submission that the sentence imposed was inconsistent with other sentences for offending of this kind. As recently explained in the decision of Police v De Feng Mo (AM 3 of 2022, 6 September 2022), there is no basis for any different ranges of sentences for a particular offence under the Criminal Offences Act as between the Magistrates Court and the Supreme Court. The ranges of available sentences are dependent, first and foremost, upon an assessment of the seriousness of the particular offending. It is therefore important that prosecuting authorities and court administrators ensure that cases are allocated to an appropriate court so that the assessment of the seriousness of the offending and the resulting sentence to be imposed falls within the jurisdiction of the court before which the case is to heard.
28. The sentence imposed in this case woefully failed to reflect the seriousness of the offending marked particularly by the nature of the acts performed, the young age of the victim and the impact the offending has had on him and his family.
29. For those reasons, the appeal is allowed and the sentence imposed by the Magistrates Court is quashed.

Pre-sentence report

30. Directions were given for a pre-sentence report to be filed by the Probation Office. That report provided the following information.
31. The Respondent is the fourth of sixth children. After his birth, he was fostered by his paternal aunt and her husband. He grew up at Longomapu in Vava’u. When he was in year 5 at primary school, his parents separated and his father went to Australia. His mother remarried. The Respondent moved to live with his grandmother. In 2019, he began drinking alcohol which his grandmother did not tolerate. The Respondent then moved back in with his mother who was then living at Hoi in Tongatapu. In early 2021, he decided to return to his grandmother’s place at Longomapu. According to his grandmother, the Respondent grew up “with good behavior” but had a “major problem with alcohol”. After his return to Vava’u, the Respondent spent more time in religious youth activities and drinking kava. Both the Respondent’s town officer and church minister observed the same about him and described his offending as “a surprise, unexpected and out of character”.
32. In 2020, the Respondent commenced vocational studies at Tailulu College. In 2021, he quit and returned to Vava’u due to financial problems. In 2022, he commenced a carpentry course at the Mailefihi Siu’ilikutapu Institute. The Respondent has had no independent income and has relied on his grandmother’s weaving and remittances from relatives abroad.
33. In relation to the offending, the Respondent told the Probation Officer the following:

“On the day of the offence, he was at home in the backyard. In his mind he was thinking about women and girls he often saw while watching movies. He consistently reflected upon their beauty and their actions making him sexually aroused. He saw the little boy victim next door playing alone about 30 or 40 metres away. He saw that nobody was around and no one could see him from where he stood. As they knew each other, he called the little boy’s name to come to him with his intentions to commit the offence. He grabbed the victim’s left-hand and started to undress his short trousers. The victim was looking confused with fear and called out to the Respondent by his name. He did not stop but responded by undressing the boy’s trousers and then tried to penetrate his penis to have anal sex with the victim. His penis didn’t go through as he wanted so he used his two fingers to try to penetrate through the victim’s anus which he did. The victim’s body was really shaking. He stopped then and started to masturbate until he ejaculated. He then let the victim go and he observed him as he left that his body was still shaking with fear from what he had done to him.”

34. The Respondent said that after the offence, he felt regret at what he had done to the victim. The Respondent told the Probation Officer that the next morning he awoke to find the victim’s father attacking him. The Respondent managed to escape and he ran away. He suffered a swollen and black eye as a result of the attack. When he reported the assault to police, they told him it would be better for him to go and apologise for what he did. His family attempted to apologise to the victim’s family a few times but were unsuccessful. On the last occasion, they offered $500 which was accepted by the victim’s mother.
35. The Respondent told the Probation Officer that he and his family are confused about the justice process in the Magistrates Court that led to this appeal.
36. The Probation Officer opined that in most reported cases of child sexual abuse, perpetrators are “identified with good behavior and reliable attitudes but have their criminal minds work in silence until they have the opportunity to commit offences”. In considering the circumstances of the offending, the Respondent took advantage of the vulnerability of the victim to commit the offences. The Respondent is “considered a trusted adult figure with power and authority over the victim, however his behavior and attitude in committing the offence makes him a very dangerous person to associate with children with youth”. The Respondent “showed real remorse and asked the court for leniency and mercy”.

Victim impact report

37. The victim is the eldest of three children of his family. Given his young age, the parents of the victim were interviewed. They were very emotional in discussing what had occurred with their son.
38. Prior to the incident, the victim was described as a very happy and active little boy. Since, his personality has changed. His parents try their best to keep him happy and to help him forget about what happened but he still remembers.
39. The victim is now fearful when being told what to do. He is described as “zoning out a lot” when asked to perform tasks. At times, he has defecated in his pants without knowing. The victim used to love going to school but now does not want to go back because he is scared.
40. The victim’s father expressed continuing anger at the Respondent and being very upset about the sentence imposed by the Magistrates Court. He and his wife said that what the Respondent had done to their son will forever change their family.
41. The parents and their son have been emotionally and mentally traumatized by this ordeal. They will never forget the victim being taken to the hospital to be examined two days after the event where the boy’s anus was still found to still be dilated and in an abnormal state. The parents cried watching their son in tears and in pain when being examined by the doctor. They have tried to best to move on but they have not forgiven the Respondent for what he has done.

Consideration on re-sentencing

42. The most serious categories of offences usually involve extreme violence, supplying of significant quantities of illicit drugs and sexual assault. Of that last category, the worst involve children. The violation of innocence and traumatic exploitation of a child for the sexual gratification of an adult is among the most unnatural, morally repugnant and heinous crimes to come before the courts.
43. As discussed in the decisions of Pousima and Valele, ibid, sentencing in a case such as this must reflect the community’s abhorrence and denunciation, punishment, protection of society, deterrence and provide for rehabilitation of the offender.
44. Considerations of the seriousness of the offending and the appropriate starting point must recognise the statutory maximum penalty of 10 years imprisonment. Even though, unlike other jurisdictions in the region, there is no such present offence in Tonga, this, in truth, was a case of anal rape of a child. Parliament’s intention in respect of such offending can also be derived from other related provisions in the Criminal Offences Act. For example, pursuant to s, 121, carnal knowledge of a child under 12 years of age attracts a maximum penalty of up to life imprisonment. It is apparent that within the Act, carnal knowledge, as the term is used, is limited only to penile vaginal intercourse or penetration. Earlier this year, a Bill to amend the Act was promulgated which, if passed, would amend the definition of rape found in s. 118 to include the offending in this case.^[2] That Bill also proposes an increase to the maximum penalty for rape to 20 years imprisonment. Even though neither of those statutory references are applicable to the present case, they do give some indication as to Parliament’s view as to the seriousness of this type of offending. It follows that, as a byproduct of the current limitations in the way in which the relevant provisions of the Criminal Offences Act of Tonga have been framed, the Respondent is fortunate to only be facing the lesser offence of sodomy.
45. The comparable sentences referred to by the Crown are distinguishable from the present case.
46. In Iketau, Cato J in fact said:

“[5] I consider an appropriate starting point for sodomy is 4 years imprisonment. I base this on the 5 year starting point which the Court of Appeal has said is appropriate for rape which carries a maximum sentence of 15 years. In my view, the starting point of 4 years should be increased to 4 and a half years for the associated violence. It would have been higher had the accused been older.”

47. The present case possesses two features which, in my view, make it more serious than the three comparable decisions referred to by the Crown. Firstly, the victim, at only four years of age, was much younger than the victims in the other cases. Secondly, the Respondent, and the victim and his family, were known to each other. The offending therefore constitutes a gross breach of trust.
48. I also take into account the impact on the victim and his family. The physical damage to the victim has either healed or is likely to heal in time. The same cannot be said with any degree of certainty in respect of the psychological and emotional damage done to him. The Court’s experience of other cases involving sexual assault on children together with the plethora of research, studies and papers published on the effects of those assaults indicates that in the vast majority of cases, the effects of the offending can be long lasting with serious and often complex impacts on the victim’s sense of worth, identity and self-esteem.^[3]
49. Those effects can often extend through to the child’s formative years leading them to either feel or be isolated or ostracized by their peers. Adult relationships can also often be affected including intimate relationships and even between the victim, once an adult, and his or her children. In the worst-case scenarios, all too often, victims of childhood sexual assault succumb to suicide.
50. The situation for the young victim in this case is even more fraught given the very limited psychological and counselling services available in Tonga, especially in the clinical field of paediatrics. For now, therefore, he will be reliant on his family and community for love and support to try to heal the damage done.
51. I am reminded of the Court of Appeal’s instruction in the decision of Misinale^[4] that on a Crown appeal against sentence the court should only increase the sentence should to the lower end of the appropriate sentencing range.
52. Having regard to seriousness of the offending here, the comparable sentences and principles referred to above, I set a starting point of 6 years imprisonment. Had this not been a Crown appeal and had the Respondent been sentenced in this court in the first instance, that starting point may well have been higher.
53. For the Respondent’s good previous record, early guilty plea (thereby thankfully saving the victim the ordeal of having to give evidence at a trial) and his expressed remorse, I reduce that starting point by one-third, resulting in a sentence of 4 years imprisonment.
54. On the issue of suspension, the considerations discussed in Mo’unga^[5] favour some suspension. The Respondent here is young, he has no previous convictions, he pleaded guilty early and has expressed remorse. Against that, the offending was clearly premeditated. Nonetheless, the Respondent is likely to be aided in his rehabilitation by the incentive and deterrence of a partial suspension of his sentence.

Result

55. The appeal is allowed.
56. The sentence imposed by the Magistrates Court on 19 May 2022 is quashed.
57. In substitution, the Respondent is sentenced to 4 years imprisonment, with effect from 19 May 2022.
58. The final year of the sentence is to be suspended for a period of 2 years following the Respondent’s release from prison on the following conditions, namely, that during the said period of suspension, the Respondent is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer;
    • (d) reside where directed by his probation officer; and
    • (e) complete courses in alcohol and drugs awareness and life skills as directed by his probation officer.
59. The identity of the victim and any of his evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.
    

NUKU’ALOFA	M. H. Whitten KC
16 September 2022	LORD CHIEF JUSTICE

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^[1] See also Public Service Commission v Public Service Tribunal [2020] TOSC 58 at [74].
^[2] Criminal Offences (Amendment) (No.5) Bill 2022.
^[3] For example, see the UK “Interim Report: A Summary Independent Inquiry into Child Sexual Abuse”, April 2018, by Professor Alexis Jay OBE, Professor Sir Malcolm Evans KCMG OBE and Ivor Frank Drusilla Sharpling CBE, a study of over 1,000 victims and survivors of child sexual abuse who shared their experience with the Inquiry’s Truth Project. See also Hong Xiao & Jaynina Smith-Prince (2015) “Disclosure of Child Sexual Abuse: The Case of Pacific Islanders”, Journal of Child Sexual Abuse, 24(4): 369-84.DOI:10.1080/10538712.2015.1022294.
^[4] Rex v Misinale [1999] TOCA 12; CA 13 1999 (23 July 1999)
^[5] Mo’unga v R [1998] Tonga LR 154.